Citation Nr: 0105770
Decision Date: 02/27/01 Archive Date: 03/02/01
DOCKET NO. 99-16 170 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to an increased evaluation for Kohler's
disease of the left foot, currently evaluated as 20 percent
disabling.
2. Entitlement to an increased evaluation for Kohler's
disease of the right foot, currently evaluated as 10 percent
disabling.
3. Entitlement to service connection for mechanical low back
pain as secondary to service-connected Kohler's disease.
4. Entitlement to service connection for bilateral
patellofemoral syndrome as secondary to service-connected
Kohler's disease.
5. Entitlement to service connection for a bilateral hip
disability as secondary to service-connected Kohler's
disease.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. M. Panarella
INTRODUCTION
The veteran served on active duty from August 1985 to July
1987.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from the October 1998 and June 1999 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office in Indianapolis, Indiana (RO). The issues of
entitlement to service connection for mechanical low back
pain, bilateral patellofemoral syndrome, and a bilateral hip
disability will be addressed in the remand appended to this
decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. The veteran's Kohler's disease of the left foot is
productive of severe pain and functional limitation, sensory
loss, limited range of motion, and tenderness.
3. The veteran's Kohler's disease of the right foot is
manifested by moderately severe pain and functional loss,
limited range of motion, and tenderness.
CONCLUSIONS OF LAW
1. The criteria for a 30 percent disability evaluation for
Kohler's disease of the left foot have been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991 & Supp. 2000); 38 C.F.R. §§ 4.1-
4.14, 4.40-4.46, 4.71a, Diagnostic Code 5283 (2000).
2. The criteria for a 20 percent disability evaluation for
Kohler's disease of the right foot have been met. 38
U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2000); 38 C.F.R.
§§ 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5283 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran believes that her Kohler's disease of each foot
is more disabling than presently evaluated. As to the
veteran's claims for increased ratings, the Board finds that
all relevant facts have been properly developed, and that all
evidence necessary for an equitable resolution of the issues
on appeal has been obtained. Specifically, the VA provided
the veteran with a timely and comprehensive examination,
acquired relevant treatment records, and afforded her with a
personal hearing before the RO. Therefore, the VA has
fulfilled its duty to assist the veteran in developing facts
that are pertinent to her claim. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114
Stat. 2096, 2097-2098 (2000); (to be codified at 38 U.S.C.A.
§ 5103A).
Disability ratings are determined by evaluating the extent to
which the veteran's service-connected disability adversely
affects her ability to function under the ordinary conditions
of daily life, including employment, by comparing her
symptomatology with the criteria set forth in the Schedule
for Rating Disabilities (rating schedule). 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2000).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled.
38 C.F.R. § 4.40 (2000). Pain on movement, swelling,
deformity or atrophy of disuse as well as instability of
station, disturbance of locomotion, interference with
sitting, standing and weightbearing are relevant
considerations for determination of joint disabilities.
38 C.F.R. § 4.45 (2000). Painful, unstable, or malaligned
joints, due to healed injury, are entitled to at least the
minimum compensable rating for the joint. 38 C.F.R. § 4.59
(2000).
The record shows that the RO initially granted service
connection for Kohler's disease in a September 1987 rating
decision and assigned a 10 percent disability evaluation
effective from July 1987. The rating assigned for this
disability was subsequently increased to 20 percent effective
from January 1996. In March 2000, the RO assigned separate
evaluations of 20 percent for Kohler's disease of the left
foot, and 10 percent for Kohler's disease of the right foot,
effective from June 1998.
In relation to the present appeal, a VA examination was
performed in April 1998. The veteran reported that she had
undergone a left talonavicular fusion and bunionectomy in
October 1997. She now had increased pain and swelling of the
left foot. Her right foot also had constant pain. It was
observed that the veteran used a cane in her right hand.
Physical examination found well-healed surgical scars, and 10
degrees of dorsiflexion and 50 degrees of plantar flexion
bilaterally. Tenderness was present in the right and left
midfoot, both medially and laterally. A review of x-rays
taken in January 1998 showed a healing talonavicular fusion
and proximal metatarsal osteotomy with bunionectomy on the
left. Some sclerosis in the navicula and a bunion were
present on the right. The veteran was diagnosed with
Kohler's disease and the examiner commented that it was
difficult to evaluate the level of disability of the left
foot because the veteran had not fully recovered from the
surgery.
A July 1998 letter from the veteran's VA physician stated
that her complaints of diffuse tenderness were not consistent
with the x-ray findings and surgical history. She was being
treated conservatively with anti-inflammatory drugs. Another
July 1998 letter from a VA physician stated that the veteran
was still under his care.
During a VA examination in August 1998, the veteran reported
persistent, worsening pain of the left foot since her
surgery, including pain with locking and swelling. The pain
was present across the anterior and anteromedial portion of
the foot, at the Achilles tendon insertion, and with plantar
flexion and weightbearing. She stated that she could not
stand on her toes and complained of a decreased range of
motion. She ambulated with a cane and could not walk more
than one block. If she was on her feet all day, she had
difficulty sleeping because of pain.
Upon examination of the left lower extremity, pulses were
palpable and nerves were intact. The veteran complained of
numbness along the medial portion of the great toe and along
the surgical scar. The scars were well healed but there was
tenderness along the surgical scars, both anterolateral
ankles, and over the talar navicular joint. The great toe
exhibited decreased dorsiflexion and plantar flexion, at 20
degrees and 10 degrees respectively. The left ankle had 30
degrees of plantar flexion and 5 degrees of dorsiflexion. As
compared to the right, the left foot had some increased
inversion and tenderness along the Achilles insertion. The
veteran could not stand on the toes of her left foot. The
right foot had a 25 degree hallux valgus deformity.
The examiner reviewed the January 1998 x-rays and noted a
healed proximal first metatarsal osteotomy and several small
exostoses of the talar navicular fusion. The current x-ray
of the left foot revealed interval healing of the first
metatarsal base osteotomy, with no change in alignment from
the previous study. There was again calcification in the
soft tissues adjacent to the talonavicular joint. A CT scan
of the left ankle found an old, mostly healed, navicular
fracture extending perpendicularly from the talonavicular
joint, and secondary osteoarthritis of the talonavicular
joint including joint space narrowing, osteophyte formation,
and subchondral cyst formation. There was no fusion or
coalition of the tarsal bones. The examiner assessed the
veteran with significant pain in the left talar navicular
region and a residual neurapraxia of the left great toe along
the medial border. He did not believe that the findings
would improve with time.
VA outpatient entries include an August 1998 initial
evaluation for physical therapy. The veteran complained of
constant pain, swelling, and inability to perform activities
of daily living. She stated that she had to walk on the
outsides of her feet. Objective observations included a 4
inch surgical scar of the left forefoot, right hallux
abductus valgus, bilateral flatfeet, and a very narrow base
of support during gait. The right foot strength was normal
but the left foot could not be fully tested secondary to
pain. Both ankles exhibited a decreased range of motion and
the left L5 dermatone was decreased to light touch.
Tenderness was present with palpation of the bilateral
navicular, worse on left.
An October 1998 letter from the VA orthopedic clinic stated
that the veteran had been followed since November 1996.
Conservative measures of physical therapy, ultrasound, and
electrical stimulation failed to relieve her symptoms. She
underwent a left bunionectomy and left navicular fusion but
bilateral foot pain persisted. She was referred to the pain
clinic and was followed in the orthopedic clinic as needed.
A CT scan in September 1998 revealed nonhealing of
arthrodeses and a right foot bunion. She was last seen in
October 1998 and ambulated with a cane. VA outpatient
records reflect that the veteran was followed for chronic
foot pain through August 1999.
The veteran appeared at a personal hearing before the RO in
November 1999. She testified that her foot disorder hindered
her ability to work and she had last worked one year ago.
She ambulated with a cane at all times and could walk no
farther than one block due to pain. She used pain medication
but was not currently using arch supports or orthopedic
shoes. However, new shoes were being ordered. She was able
to care for her home and children.
The veteran's Kohler's disease of each foot has been assigned
separate 10 and 20 percent schedular evaluations pursuant to
38 C.F.R. § 4.71a, Diagnostic Code 5283 (2000). Under this
Diagnostic Code, a 10 percent disability evaluation is
assignable for moderate malunion of, or nonunion of, tarsal
or metatarsal bones. A 20 percent evaluation is warranted
for moderately severe malunion or nonunion of tarsal or
metatarsal bones, and a 30 percent disability evaluation is
assignable for severe malunion or nonunion of tarsal or
metatarsal bones. The note to this Diagnostic Code indicates
that with actual loss of the use of the foot, a 40 percent
disability evaluation is appropriate. 38 C.F.R. § 4.71a,
Diagnostic Code 5283 (2000).
Based upon the above subjective complaints and objective
findings, the Board concludes that the criteria for the next
higher evaluation for each foot has been met. As to the left
foot, the Board finds that the veteran's disability is more
appropriately characterized as severe. The veteran complains
of constant pain of this foot, which has greatly limited her
ambulation and has caused dependence upon a cane. The
veteran cannot stand on the toes of this foot and objective
findings include a limited range of motion, decreased
sensation, and tenderness. Diagnostic testing shows
continuing deformity of the foot, including degenerative
changes. The VA examiner in August 1998 found it unlikely
that the veteran's level of impairment would improve and
treatment records confirm that the veteran continues to have
substantial pain and functional impairment. Accordingly, the
Board finds that the criteria for a 30 percent have been met
and the benefit sought on appeal must be granted.
Nevertheless, the Board observes that the veteran is entitled
to no more than a 30 percent evaluation as she has not lost
actual use of the left foot.
Likewise, the Board finds that the symptomatology associated
with the right foot is more accurately characterized as
moderately severe. Although the right foot is not as
disabled as the left, the veteran reports constant pain and
functional limitation of this foot. This foot also exhibits
tenderness and decreased range of motion, and objective
findings include sclerosis, a bunion, and hallux valgus
deformity. Therefore, due to the veteran's level of
functional impairment, the Board finds that the criteria for
a 20 percent evaluation have been met.
The Board has considered the application of alternative
Diagnostic Codes, but finds that none would afford the
veteran a higher evaluation. See Diagnostic Codes 5003,
5271, 5284 (2000). Likewise, the Board has considered the
provisions of 38 C.F.R. § 3.321(b)(1) (2000). However, the
Board, as did the RO, finds that the evidence of record does
not present such "an exceptional or unusual disability
picture as to render impractical the application of the
regular rating schedule standards" and that criteria for
submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) (2000) are not met.
ORDER
Subject to the provisions governing the award of monetary
benefits, an evaluation of 30 percent for Kohler's disease of
the left foot is granted.
Subject to the provisions governing the award of monetary
benefits, an evaluation of 20 percent for Kohler's disease of
the right foot is granted.
REMAND
The veteran claims that she suffers from mechanical low back
pain, bilateral patellofemoral syndrome, and a bilateral hip
disability secondary to her service-connected Kohler's
disease. A veteran may be granted service connection for
injury or disease contracted in the line of duty or for
aggravation of a preexisting injury or condition. 38
U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (2000).
Service connection may also be granted for a disability that
is proximately due to or the result of a service-connected
disability. When service connection is established for a
secondary condition, the secondary condition is considered
part of the original condition. 38 C.F.R. § 3.310(a) (2000).
In addition, when aggravation of a nonservice-connected
disorder is proximately due to or the result of a service-
connected disability, such veteran shall be compensated for
the degree of disability (but only that degree) over and
above the degree of disability existing prior to the
aggravation. The term "disability" as used in 38 U.S.C.A.
§ 1110 (West 1991), refers to impairment of earning capacity,
and such definition mandates that any additional impairment
of earning capacity resulting from a service-connected
disability, regardless whether the additional impairment is
itself a separate disease or injury caused by the service-
connected disability, shall be compensated. Allen v. Brown,
7 Vet. App. 439, 448-49 (1995).
During the pendency of this appeal, the provisions of
38 U.S.C.A. § 5107, which concern the VA's duty to assist the
veteran with the development of facts pertinent to her claim,
have been substantially revised. The prior provisions of
38 U.S.C.A. § 5107 required that the VA assist a veteran with
the development of facts pertinent to a "well-grounded"
claim for benefits, whereas the revised version of this
statute contains no such requirement and instead requires
more generally that the VA assist a veteran with the facts
pertinent to her claim. See Veterans Claims Assistance Act
of 2000, Pub. L. No 106-475, 114 Stat. 2096 (2000).
In relation to the present appeal, the veteran's service
medical records contain no complaints, findings, or diagnoses
related to the low back, knees, or hips. August 1994 x-ray
reports of the right hip and thoracic spine, as well as a
July 1990 x-ray of the bilateral hips, were negative. During
a VA outpatient visit in July 1998, the veteran complained of
low back pain that she believed was related to limping on the
left foot. The veteran was assessed with musculoskeletal
back pain and it was noted that she walked with a limp of the
left foot. The following month, she was assessed with
probable lumbosacral strain.
During a VA examination in May 1999, the veteran reported
that she developed low back, knee, and hip pain two years ago
following her foot surgery. Upon examination, the low back
exhibited mild paraspinal tenderness in the lumbar region and
decreased range of motion. Examination of the hips revealed
full range of motion, with no flexion contractures, and no
pain with rotation. Examination of the knees was negative
except for a positive patellar grind and a positive patellar
shrug. The x-ray reports of the knees, hips, and low back
were negative other than for partial sacralization of the
left L5 transverse process. The examiner's impression was
mechanical low back pain and bilateral patellofemoral
syndrome. He could not identify an orthopedic cause for the
hip pain. He believed that most of the veteran's problems
were related to overall deconditioning; however, her foot
problems likely aggravated the low back, hip, and knee pain.
VA outpatient records show that the veteran continued to be
seen for knee, hip, and low back pain. In March 1999, it was
noted that her knee pain could be secondary to postural
changes. Another evaluation observed knee pain secondary to
patellofemoral syndrome, and no orthopedic cause for the hip
pain. An August 1999 letter from the veteran's VA orthopedic
physician stated that the veteran continued to have pain of
the left foot and that this caused pain of the knees, hips,
and back.
As aforementioned, the VA's duty to assist the veteran with
the development of her claim has been substantially
heightened. On November 9, 2000, the President signed the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475
(2000) (to be codified at 38 U.S.C. §§ 5100-5103A, 5106-7,
5126) (the "Act"), which substantially modified the
circumstances under which VA's duty to assist claimants
applies, and how that duty is to be discharged. The new law
affects claims pending on or filed after the date of
enactment (as well as certain claims which were finally
denied during the period from July 14, 1999 to November 9,
2000). Changes potentially relevant to the veteran's appeal
include the establishment of specific procedures for advising
the veteran and her representative of information required to
substantiate a claim, a broader VA obligation to obtain
relevant records and advise claimants of the status of those
efforts, and an enhanced requirement to provide a VA medical
examination or obtain a medical opinion in cases where such a
procedure is necessary to make a decision on a claim.
The Board notes that the VA examiner in May 1999 attributed
the veteran's disabilities to her overall deconditioning;
however, he also stated that her foot problems likely
aggravated the low back, hip, and knee pain. The Board also
observes that the veteran's complaints of bilateral hip pain
have not been diagnosed as a disability. Therefore, the
Board believes that another VA examination and opinion as to
the nature and etiology of the veteran's claimed disabilities
would be helpful. See Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98
(2000) (to be codified as amended at 38 U.S.C. § 5103A).
Under these circumstances, the Board is of the opinion that
it may not properly proceed with appellate review until
additional development has been accomplished.
Accordingly, the case is hereby REMANDED to the RO for the
following actions:
1. The RO should request that the
veteran identify all sources of medical
treatment received for her claimed
disabilities, and that she furnish signed
authorizations for release to the VA of
private medical records in connection
with each non-VA medical source she
identifies. Copies of the medical
records from all sources she identifies,
and not currently of record, should then
be requested and associated with the
claims folder. The RO should document
all reasonable efforts to obtain such
records.
2. Thereafter, the RO should schedule
the veteran for the appropriate VA
specialty examination. Since it is
important "that each disability be viewed
in relation to its history," 38 C.F.R.
§ 4.1 (2000), the examiner must be
provided with the veteran's claims file.
The examiner is requested to review all
pertinent records in the claims file,
including the service medical records,
and the medical opinions of all private
physicians and VA examiners. Any and all
evaluations, studies, and tests deemed
necessary by the examiner should be
accomplished. All clinical findings and
subjective complaints should be reported
in detail. The examiner is requested to
offer an opinion as to the nature,
severity, and manifestations of the
veteran's claimed disabilities of the low
back, knees, and hips. In so doing, the
examiner should provide an opinion as to
whether it is at least as likely as not
that any current disability is related
to, or aggravated by, the veteran's
service-connected Kohler's disease. The
opinion must be supported by a written
rationale, and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
3. The RO should review the claims files
and undertake any other necessary action
to comply with the new assistance to the
veteran requirements under the Veterans
Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 3(a), 114 Stat. 2096,
2097-98 (2000) (to be codified as amended
at 38 U.S.C. § 5103A).
4. Following the completion of the
foregoing, the RO should again review the
case and prepare a rating decision. The
rating decision should address the
holding of Allen v. Brown, 7 Vet. App.
439, 448-49 (1995). If the benefits
sought on appeal remain denied, the RO
should furnish the veteran and her
representative with an appropriate
supplemental statement of the case and
afford them an opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The purpose of this remand is to obtain additional
development and to ensure compliance with the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000). The veteran and her representative have the right to
submit additional evidence and argument in support of the
matters addressed in this remand. Kutscherousky v. West, 12
Vet. App. 369 (1999).
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999) only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000)